Divorce, General Legal, Marriage, Opinion

Mississippi in the News- A Test Case on Same-Sex Divorce

10/02/2013 BowTieLawyer 4 Comments

Mississippi is the site of the latest same-sex challenge to laws preventing same-sex persons from getting married and seeking a divorce.

same-sex-divorce-cake-story-top — http://www.CNN.com

A Mississippi resident, who married her spouse in California, is now seeking that a Mississippi Court divorce them. The couple lived in Mississippi for some time after their marriage and ultimately separated in the Magnolia State. The case is pending in DeSoto County Chancery court and has garnered world-wide attention.

However, it may not be a walk in the park…

MS law specifically provides that a same-sex marriage is VOID. Void means it does not exist, not that it could if everything was just right. Void=nothing. The law goes on to specifically deny that MS has to recognize another state’s same-sex marriage.

MCA 93-1-1, (2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or valid marriage in Mississippi.

Now before you bash MS too much for this, it is quite common that states have different laws regarding requirements for persons to get married in their respective states. Different laws can be allowed. For instance you can marry your niece-in-law in California, but not in Utah. And Utah does not have to recognize the CA marriage. Nothing to do with same gender on that restriction. Also, most states prohibit same-sex marriage, only 14 states allow same-sex marriage, at this time.

There are several issues that are apparent in this MS pending matter.

Issue #1. MS law, which at this time is valid and constitutional by the way, disallows their “marriage” to be recognized as a marriage. And, if no marriage, then there can be no divorce.

Issue #2. The Mississippian sued her spouse on Habitual Cruel and Inhuman Treatment. The parties had been separated for over 3 years by the time of filing which may be an indicator of limited grounds regarding cruelty, which is one of the most difficult grounds to prove. So there may not be a divorce on cruelty anyway, as the plaintiff could not meet her burden of proof.

Issue #3. The Mississippian sued her spouse for Adultery. Adultery, in Mississippi, is defined as “sexual intercourse with a person of the opposite sex, not your spouse.” Despite this being the Bible Belt, it is possible that Mrs. Defendant is in another relationship with another person, of her same sex, and is still not committing “adultery.” Technically speaking, of course.

Issue #4. The Constitution’s Full Faith & Credit clause. FF&C requires that a valid Order from one State be recognized in another. The catch is a Marriage is not an Order, but rather a contractual arrangement between the two spouses and the state that they are being married in. This means a marriage is not entitled to Full Faith and Credit. Interestingly, a divorce would be, assuming the Jurisdictional/residency requirements were met.

So, some legal mumbo-jumbo and a refrain from a little common sense results in…nothing. That is exactly what this litigant will get from Mississippi and will likely get it in abundance. Stay tuned for more developments.

Matthew Thompson is a family law attorney and domestic relations adj. professor at MC Law; Keeping you abreast of the ever-changing world of family law in which we live in.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, General Legal, Marriage

Name, Name, Name…Messiah to Martin to Messiah.

09/30/2013 BowTieLawyer 2 Comments

We’ve seen in the news a dust-up about a TN Judge that refused to allow parents to name their child “Messiah,” in fact changing the child’s name.

Mom and dad were in a disagreement over what to name the child, but ultimately agreed on the first name of Messiah and disagreed over the child’s surname (last name). The Judge crossed the line, however, when she changed the child’s first name over the parent’s agreement to Messiah and objection to any change of the first name. The Judge cited that the name was not in the child’s best interest and stated there is only one Messiah. The Judge also noted the name could be offensive to the religious community.

However, parents have a constitutional right to raise their children as they see fit, a constitutional right to privacy and a presumption that they are acting in the child’s best interests. That is not to say all parents do, but the State’s interest is primarily limited to the child’s last name. TN could determine the last name, which could either be the same as the mother’s or the father’s, but crossed the line when changing the first name.

The parents appealed the ruling and the matter was quickly reversed. Messiah, changed to Martin, is Messiah again. A correct legal outcome, regardless of how you feel about the name. In Mississippi, a child shall have the surname of the father, if known, regardless of the marital status of the parents. There is a provision, in the judge’s discretion, to deviate from the the surname of the father requirement, however there must be a compelling reason.

Matthew Thompson is a domestic relations counselor in the Magnolia State and encourages you to know your rights as a parent.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Divorce, General Legal, Marriage

Marital Privilege – From the Bedroom to the Courtroom.

09/27/2013 BowTieLawyer 1 Comment

We hear a lot about attorney-client privilege, doctor-patient privilege and even priest-penitent privilege, but there exists a marital spousal privilege, though application can be limited and tricky.

A spouse to spouse communication is confidential if it is made privately by any person to that person’s spouse and is not intended for disclosure to any other person. In any proceeding, civil or criminal, a spouse has a privilege to prevent that person’s spouse, or even a former spouse, from testifying as to any confidential communication between that person and that person’s spouse. The privilege may be claimed by either spouse in that spouse’s own right or on behalf of the other.

This means that a husband can prevent a wife from testifying about something he told her in confidence. It also means that an ex-husband can even prevent an ex-wife from testifying about something he told her in confidence, during the marriage.

So, you ask,“How can I testify about what my spouse said in my divorce case?”

Exceptions. There is no privilege under this rule in civil actions between the spouses (including divorce) or in a proceeding in which one spouse is charged with a crime against; (1) a minor child, or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1), or (2) of this rule. MRE 504.

Matthew Thompson is a family law attorney and warns you not to count on spousal privilege in a divorce action. So be careful about the content of those sweet nothings that you are whispering.

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Child Custody, Child Support, Divorce, Grandparent Visitation, Modifications, Opinion

Going to Court is HARD.

09/25/2013 BowTieLawyer 1 Comment

I have blogged recently about Why Settling Your Case is Best, avoiding Court, and Why Going to Court is “Best.” The gist of the former being settlement is preferred for having a say in the final outcome and having predictability and the latter, going to Court is best when there is no room for compromise.

Unfortunately, I have been involved in the latter, a case where there was no room for compromise. From my perspective one party was primarily the aggressor and was encouraged by the attorney to take unreasonable positions and force the matter to Court. Of course, they did not view their own positions as meritless. Also, I’m sure they thought my client and I were wretches…

Regardless, hard feelings abounded. This case had some history. What should have been a run of the mill divorce and custody matter was extremely contentious and was litigated over an issue that was not an issue. In Round One, after most of a day of trial, the Court stopped the matter and told the other side they were going to lose on their issue and the case did settle.

But, like the A-Team, they had a plan! Just a few months after it was final they decided another bite at the apple was proper. Based primarily on speculation…which was eventually admitted at Court, the other side sought to change the deal they had agreed to just months prior. Round Two in Court was based on rank speculation. After hours of testimony, haughty lecturing, and what can only be described as highly stylized testimony by the aggressive party and deeply emotional testimony by the other, the Court dismissed the case.

So, what is the take away? Sour grapes? I don’t think so, at least not on my part. It made me realize, yet again, Court is HARD. It is not fun. It is emotional. And, even when you win, nobody wins. Here’s what else can be guaranteed, when you successfully defend against baseless claims from the other side who thinks they are completely in the right when they are not, you better get ready for posturing and Round 3!

Matthew Thompson is a family law attorney and knows that sometimes even when you win you don’t win.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

General Legal, Pets

The Day the Raccoon Went Berserk

09/24/2013 BowTieLawyer Leave a comment

Raccoon-disrupts-Adams-County-Circuit-courtroom

The day the Raccoon went berserk in Adams Circuit Court, they were jumping pews and shouting Hallelujah!
– apologies to Ray Stevens #bowtielawyerms

Matthew Thompson is a family law attorney and warns you to watch out for Raccoons in Court.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Child Custody, Child Support, Divorce, General Legal, Opinion

Why Going to Court is “BEST.”

09/16/2013 BowTieLawyer 1 Comment

This post is advice rarely given or taken. I have previously blogged on Why Settling Your Case is BEST!. Settlement is usually BEST, but sometimes Court is inevitable…

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Why going to Court is Best, or the BEST alternative;

It allows you to tell your side of the story.
Somethings you CANNOT compromise on.
The Judge may be in the best position to hold someone accountable, who needs to be!

Commonly, settlement is your best option. It gives you say in the final outcome, whereas letting a Judge decide your case can remove what say you may have. Sometimes what you want and what a Judge can award are not congruent. However, sometimes what the other side wants, a judge would not give them. Going to Court can be therapeutic. Going to Court can also show that you are serious and won’t back down from a fight. Going to Court can also backfire, cost more money and end in a result that is more difficult to live with.

Matthew Thompson is a family law attorney and goes to Court often, but usually when settlement has failed or stalled.

You may contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, General Legal, Opinion

Attorney Stereotypes- Which One Are YOU?

09/11/2013 BowTieLawyer Leave a comment

Let’s face it. Attorneys are stereotyped. Ambulance-chasers, Bulldogs, or Greedy are just some of the monikers that society gleefully attaches to lawyers. Some are true and deserved.

However, lawyers also stereotype themselves. Here are a few I have dealt with.

Holier Than Thou– This lawyer is usually a young female lawyer who is equally showing how tough they are, but also reasonable. They have never made a mistake and when they did it was not their fault. This lawyer also ALWAYS has the innocent spouse. The well-meaning, single mom just trying to make an honest living in this cruel, unfair world. The Holier Than Thou attorney is so “sweet” on the phone they think they are being nice. They are not.

Know It ALL– This lawyer has never met a question that could not be answered and answered at length. You seek a “yes” or “no” to a question and they give you an explanation that is mostly irrelevant and non-responsive. When you ask again they get agitated with you for not listening.

Know-Nothing– This lawyer cannot be bothered with details. Let’s throw it on the wall and see what sticks. This is all fine and good when what you want and what they will agree to are similar. This is a problem when parties’ needs are opposite.

Do Nothing – This lawyer is reactionary. Sometimes there is a good reason to react instead of blazing a trail which may be unnecessary. However, if the Do Nothing creates problems for achieving results, it’s a problem.

Bull in the China Shop – This lawyer goes with the gusto. If you can file it, file it. If it can be sued, sue. Let the Judge sort it out. That’s why they are paid the big bucks, right? So what that you sued him for contempt for something he literally paid 2 years ago and has proof of. What? Shown the cancelled check and your client’s signature on the cancelled check. Well, there’s probably something he’s in contempt of anyway, right?

Sneaky Snake– The sneaky snake is pleasant to talk to and fun to be around, but you cannot trust them or believe them. Don’t. The Order is not in the mail, they are not calling you tomorrow, they will not Agree to a date certain even though they said they would. Their client won’t “let” them.

So, which are you? Which am I? What does the situation call for? Some attorneys have a knack for being the chameleon, nice to you, mean to me, a great guy, a wonderful gal, as honest as the day is long and as crooked as a “j” hook. There are many other stereotypes. Stay tuned for more…

Matthew Thompson is a family law attorney and the best advice you can take away from this is know who you are dealing with, as best you can.

Follow the blog: BowTieLawyer Visit the website: Thompson Law FirmYou may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Divorce, General Legal

I Say, You Say, We All Say Hearsay

09/09/2013 BowTieLawyer Leave a comment

Witness: And then my neighbor said that he was f….

Lawyer: Objection, your Honor. Hearsay.

Judge: Sustained. Don’t tell me what somebody said.

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Hearsay happens everyday. Hearsay, by definition, is any out of Court statement used to prove the truth of the matter asserted. Huh? Yep, legal mumbo-jumbo. Think of hearsay as ANYTHING that is said outside of the Courtroom by ANYBODY. It also includes writings, documents and many, many things, but that is a blog for another day. Today it’s about testimony.

Most commonly hearsay occurs anytime a witness is telling their story. It is very difficult to tell what happened and who did what without saying what was said. This is very frustrating for witnesses, irritating for Judges and something a lot of attorneys woefully ill prepare for. If you are a witness testifying just know that you cannot say what somebody else said unless they are a party in the case.

So, when mom is testifying about how upset little johnny was when dad dropped him off late for the baseball game, but mom did not see it and was relying on the assistant coach telling her, she can’t say what the assistant coach told her. Either the assistant coach has to come testify or mom has to describe little johnny after the game. “He came home sullen, eyes red, as if he’d been crying.” Little Johnny told her what happened. So she called dad. Now she can talk about the call with dad and who said what because they are the parties. Confused yet?

Hearsay and testimony is something you need to practice handling with your attorney. You may always describe what you did and said and this is the way around hearsay and/or having the other witnesses involved testify.

Matthew Thompson is a family law attorney and encourages you to practice your testimony and telling your story without saying what somebody else said.